FAQ: State Complaints and Corrective Action

What is a special education state complaint?

A state complaint is a way for members of the community to notify the Arizona Department of Education (ADE) that a public school is or may be in noncompliance with the Individuals with Disabilities Education Act (IDEA). ADE is responsible for ensuring that public education agencies (PEA), which include school districts and charter schools, comply with Part B of the IDEA – the law governing special education for children ages 3 through 21. The state complaint process, described in the federal regulations at 34 C.F.R. §§ 300.151-153, is one way that ADE ensures compliance. The United States Department of Education has described the broad scope of the state complaint system as “critical” for providing “parents, organizations, and other individuals with an important means of ensuring that the educational needs of children with disabilities are met and provid[ing] the SEA with a powerful tool to identify and correct noncompliance with Part B of the Act or of part 300.” [34 C.F.R. Part 300, Analysis of Comments and Changes, Subpart B–State Eligibility, Federal Register, Vol. 71, No. 156, p. 46601 (August 2006)] Accordingly, a complaint is considered a request for the ADE/Dispute Resolution to investigate an alleged failure by a PEA to comply with a legal requirement of the IDEA. Dispute Resolution is tasked with investigating complaints to determine whether the alleged noncompliance is present within the PEA and, if so, to order the PEA to correct the noncompliance.

Who can file a complaint?

Any individual or organization may file a state administrative complaint to allege a violation(s) of Part B of the IDEA that occurred within a year of the date the complaint is filed. Complaints may not be filed anonymously.

What is the difference between a state complaint and a due process hearing?

A due process hearing is an administrative proceeding, typically involves attorneys, and is very legal in nature. The state complaint process, on the other hand, is designed to be informal, efficient, and inexpensive. It is not an administrative proceeding or judicial action, and the involvement of attorneys in a state complaint is not typical or necessary. A special education state complaint can be filed by anyone. The complaint process typically involves one or more allegations of procedural violations. For example, a parent may allege that a school has not provided special education and/or related services to his or her child with a disability in accordance with the child’s individualized education program (IEP). Another example may be an allegation that a school did not evaluate a child within mandated timelines. A complaint can also focus on a process or procedure that violates a special education law or regulation.

A due process hearing can only be requested by a parent, legal guardian, or student who has reached the age of majority (18 in Arizona), or by a public school, in order to address disagreements relating to the identification, evaluation, educational placement, or the provision of a free appropriate public education (FAPE) for the child. Due process hearings generally involve substantive (as opposed to procedural) disputes between the parent and the public school over the appropriateness or nature of the student's program or services.

What does Dispute Resolution do when it receives a state complaint?

As an initial matter, Dispute Resolution staff reviews incoming complaints and any additional documents provided by the complainant in order to determine if there is an allegation of a possible violation of Part B of the IDEA. If the complainant has not alleged a possible violation of IDEA Part B, Dispute Resolution will send the complainant a letter explaining why it cannot open an investigation. If there is an allegation of a possible violation of IDEA Part B, an investigator will be assigned. He/she will identify issues for investigation and will notify the district or charter school that is the subject of the complaint that a complaint investigation has been opened. The complainant will be given an opportunity to submit additional information about the complaint, either verbally or in writing, and the PEA will be given an opportunity to respond to the complaint. The district or charter may provide a written response and documents supporting the response, or it may choose to respond to the complaint verbally through interviews with the investigator. All parties are asked to provide any written documentation within 10 days of the date the complaint is opened. The investigator reviews all documentation provided by both parties. When needed, the investigator may request additional information, conduct interviews, review other student files, and/or conduct a site visit.

Who are the complaint investigators and are they advocates for the complainant or the school?

Dispute Resolution complaint investigators have a background in the field of special education and an expertise in the federal and State legal requirements pertaining to special education. They are neutral and do not advocate for either the complainant or the school. Instead, they are charged with examining the facts of each particular situation and determining if there is noncompliance with a legal requirement of the IDEA that needs to be corrected.

Are there issues Dispute Resolution cannot investigate? Who addresses issues that do not fall under the IDEA?

Dispute Resolution has authority to investigate allegations that a PEA has violated a requirement of Part B of the IDEA or its implementing regulations that occurred within one year of the date the complaint was filed. The complaint system is not available for certain types of allegations.

• The state complaint system is not available for allegations of civil rights violations related to disability. These matters should be addressed directly with the United States Department of Education/Office for Civil Rights (OCR).
• Allegations regarding Section 504 accommodation plans should also be addressed to the United States Department of Education/OCR.
• PEAs are responsible for the general day-to-day operation of schools, including supervision of personnel and the administration of programs. Accordingly, personnel issues or general education matters are not handled by the state complaint system and should instead be addressed through the PEA’s administrative channels or to its governing board.
• Allegations of immoral or unprofessional conduct by certificated school personnel should be addressed to the Arizona State Board of Education/Investigative Unit.
• Allegations of abuse or neglect of children by school personnel should be directed to local law enforcement.
• Allegations that a PEA has violated a child’s right to confidentiality with respect to records that are not collected, maintained, or used under Part B of the IDEA should be addressed to the U.S. Department of Education/Family Policy Compliance Office (FPCO). On the state level there is a parallel mechanism available. Arizona Revised Statutes state, “Any person who suspects that a school district or charter school has knowingly violated the Family Educational Rights and Privacy Act [FERPA] may notify the principal of the charter school or the superintendent of the school district. If the matter is not satisfactorily resolved by the principal of the charter school or the superintendent of the school district within 60 days after the notice, the person may file a complaint with the [Arizona] superintendent of public instruction.” [A.R.S. § 15-142(C)]
• Allegations that a PEA will in the future violate the IDEA or allegations that involve hypothetical situations cannot be investigated. The regulations that implement the IDEA state that the allegation must be that a school has violated a requirement of Part B of the IDEA.

Will Dispute Resolution investigate a nonspecific allegation of noncompliance with the IDEA?

No. The IDEA regulations require that a complaint include sufficient facts to support each allegation. Therefore, a complaint cannot merely allege general concerns with a PEA’s special education program with the expectation that the State will find noncompliance if it opens and conducts a formal investigation of the PEA.

How long does it take to investigate a complaint?

Dispute Resolution must issue a written decision (called an Investigation Report) no later than 60 calendar days of the date the allegations are formally identified as a complaint. There are two exceptions to this. First, an extension of time may be granted because of exceptional circumstances. Second, an extension of time may be granted if the parties agree in writing to extend the timelines to resolve the dispute through an alternative dispute resolution option, such as mediation.

What happens if the investigator finds a violation?

The ADE is responsible for ensuring that all PEAs within its jurisdiction meet the requirements of the IDEA and its implementing regulations. In exercising its general supervisory responsibilities, ADE must ensure that any identified noncompliance is corrected as soon as possible, but in no case later than one year after the PEA is given written notification of the noncompliance. To that end, if a complaint investigation reveals a violation of a requirement of Part B of the IDEA, Dispute Resolution will order the school district or charter school to complete corrective action.

What is corrective action and why is it ordered?

If noncompliance is discovered during a complaint investigation, corrective action will be ordered. The purpose of corrective action is to correct noncompliance and mitigate the likelihood of recurrence. Corrective action plans will vary depending on the facts of the complaint and the violations discovered during the investigation process and may include the following: training for school personnel; review and revision (or development of) procedures; compensatory services; monetary reimbursement; or other corrective action as deemed appropriate. Corrective action can be individualized to provide relief for a particular child or children who are impacted by the identified noncompliance, or may be systemic in nature, involving general programmatic improvements within a PEA. Indeed, it is the longstanding position of the United States Department of Education that, “The Part B state complaint procedures are intended to address both systemic and child specific violations. In order to meet its general supervisory responsibility under [the IDEA regulations], [Dispute Resolution] must resolve complaints in a way that provides individual relief, when appropriate, and addresses systemically the provision of appropriate services for all children with disabilities.” [Letter to Warkomski, 102 LRP 12928 (OSEP 2001)]

Corrective action is not punitive. Dispute Resolution does not have the authority to sanction or terminate personnel, to levy fines against personnel or PEAs, or to award punitive damages to children involved in a complaint or complainants. PEAs must comply with Dispute Resolution’s corrective action orders in order to reestablish compliance and to ensure Dispute Resolution does not have to move to enforcement actions as required under the IDEA, which, after the opportunity for a hearing, may include interruption of IDEA funds to the PEA.

How long does it take for Dispute Resolution to order corrective action in state administrative complaints?

After Dispute Resolution identifies a complaint it has 60 calendar days to investigate the allegations, identify whether noncompliance exists, and provide a written Investigation Report that describes the findings of facts, conclusions of law, and the State’s independent determination. Corrective action is only ordered to correct any noncompliance identified in the complaint investigation; therefore, no corrective action is ordered unless Dispute Resolution determines that a PEA is in noncompliance with one or more issues. It is most common for Dispute Resolution to issue corrective action in a separate correspondence in the same envelope/email as the Investigation Report. Thus, in most cases, corrective action to address noncompliance will be ordered within 60 calendar days of a complaint being identified by Dispute Resolution. 

Who decides what the corrective action will be?

The Dispute Resolution team includes a Compliance Coordinator who is responsible for crafting the corrective action necessary to correct the identified noncompliance and for monitoring the PEA’s completion of that corrective action. In consultation with the Director of Dispute Resolution and the complaint investigator, the Compliance Coordinator designs corrective action to address the noncompliance in a manner intended to result in meaningful outcomes within the PEA. Following the issuance of corrective action, the Compliance Coordinator monitors its completion, including providing ongoing guidance, technical assistance, and training to PEAs when needed, and communicating with school personnel and parents as appropriate.

What are compensatory services and when are compensatory services ordered as corrective action?

In accordance with the state complaint procedures outlined in the IDEA regulations, when the complaint finding reveals a failure to provide appropriate services, corrective action should address the needs of the child or children impacted by the noncompliance and ensure the future provision of services to all children with disabilities within the PEA. Dispute Resolution has “broad flexibility to determine the appropriate remedy or corrective action necessary to resolve a complaint in which the SEA (State Educational Agency) has found that the public agency has failed to provide appropriate services to children with disabilities.” [34 C.F.R. Part 300, Analysis of Comments and Changes, Subpart B–State Eligibility, Federal Register, Vol.71, No. 156, p. 46602 (August 2006)]

When a school has failed to provide appropriate services to children with disabilities, one remedy is for the PEA to make compensatory services available to compensate for special education and related services that were not made availble. Compensatory services are not expressly defined in the IDEA; however, courts [under the authority granted them in 20 U.S.C. § 1415(i)(2)(C)(iii) and 34 C.F.R. § 300.516(c)(3)] have long awarded compensatory education as an appropriate remedy under the IDEA when a student has been denied a FAPE in the past and can be awarded as appropriate equitable relief. [Parents of Student W. v. Puyallup Sch. Dist., 31 F.3d 1489, 1496-97 (9th Cir.1994)] “Appropriate relief is relief designed to ensure that the student is appropriately educated within the meaning of the [IDEA]” and “[t]here is no obligation to provide a day-for-day compensation for time missed.” [Parents of Student W. at 1497]

In other words, compensatory services may take a variety of forms and is not necessarily minute-for-minute replacement services. The Compliance Coordinator will carefully review the complaint investigator’s findings of fact and conclusions to evaluate the nature of the noncompliance and its impact on the child or children involved and will make a determination of the types and amounts of compensatory services, if any, that would provide appropriate equitable relief.

Because Dispute Resolution has the authority to investigate only special education matters, it is important to understand that compensatory services would be intended to compensate for a PEA’s failure to make special education and related services available to the child or children in conformity with their IEPs, not just to make up for instructional or school time that was missed in general. Additionally, regardless of the type of environment in which a child with a disability is educated, it would be quite rare for the child’s entire school day to consist of only special education and related services. Thus, it would be equally rare that a corrective action order of compensatory services would account for a child’s entire school day.

Are the SEA’s findings in a state complaint appealable?

In a state complaint investigation, the State Education Agency (SEA) is required to issue a written decision that “addresses each allegation in the complaint and contains findings of fact, conclusions of law, and the reasons for the SEA’s final decision.” [34 C.F.R. § 300.152(a)(5)] The U.S. Department of Education has stated, “The regulations neither prohibit nor require the establishment of procedures to permit [a school] or other party to request reconsideration of a State complaint decision. We have chosen to be silent in the regulations about whether a State complaint decision may be appealed because we believe States are in the best position to determine what, if any, appeals process is necessary to meet each State’s needs, consistent with State law.” [34 C.F.R. Part 300, Analysis of Comments and Changes, Subpart B – State Eligibility, Federal Register, Vol.71, No. 156, p. 46607 (August 2006)]

The U.S. Department of Education has explained, “[i]f after the SEA’s final decision is issued, a party who has the right to request a due process hearing and who disagrees with the SEA’s decision may initiate a due process hearing, provided that the subject of the State complaint involves an issue about which a due process hearing can be filed and the two-year statute of limitations for due process hearings (or other time limit imposed by State law) has not expired.” [34 C.F.R. Part 300, Analysis of Comments and Changes, Subpart B – State Eligibility, Federal Register, Vol.71, No. 156, p. 46607 (August 2006)]